How an ICC Investigation into Israel Would Cause a Cut Off in US Aid to Palestine

Israel and the United States have condemned Palestine’s decision to join the International Criminal Court (ICC) and also grant the Court jurisdiction retroactive to June 2014, which includes the Summer 2014 conflict in Gaza. Reprimands were quickly followed by action when Israel froze $127 million of tax revenues owed to Palestine. Some have questioned whether the US will follow suit with its own economic sanctions. While this policy decision remains unanswered, another question looms: Will US law require a mandatory cut off in Palestinian aid? The answer is likely yes.

In the Consolidated Appropriations Act of 2015, US aid to Palestine is conditioned on the latter not “initiat[ing] an International Criminal Court judicially authorized investigation, or actively support[ing] such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” There are no waivers to this condition in the Act.

As Yishai Schwartz (associate editor at Lawfare and former fellow at the Tikvah Fund) highlighted, States cannot “initiate” an investigation. Only the ICC Prosecutor can. States can only consent to, invoke, or refer matters to ICC jurisdiction. Yet, “initiate” cannot be construed as meaningless. Consequently, the only logical meaning of “initiate” is to “put in motion” events that lead to an ICC investigation. Having lodged an Article 12(3) jurisdictional declaration in January, Palestine has already “initiate[d]” or invoked the ICC’s jurisdiction in the sense that it has accepted the jurisdiction of the ICC in Palestine. Or, even more apt, a likely Article 14 State Party referral from Palestine post-April 1 (when it officially becomes a State Party) or by another State Party (such as Comoros who referred the Gaza Flotilla matter to the ICC) would “initiate” matters at the ICC. Yet, in either case, “initiat[ing]” the jurisdiction of the ICC is not enough to trigger a cut off in aid. There must be a “judicially authorized investigation” of Israeli nationals for alleged crimes against Palestinians as well. Unfortunately, this term is a novel one not defined by the Rome Statute, US law or been interpreted by a court. So, how can an ICC investigation be judicially authorized?

As set forth in the Rome Statute, ICC jurisdiction can only be activated in one of three ways: by a State Party referral, by an UN Security Council referral, or pursuant to the Prosecutor’s proprio motu power (meaning on her own authority) with respect to a State Party or a non-State Party that has accepted ICC jurisdiction by way of an ad hoc 12(3) declaration. Unlike State Party or UN Security Council referrals, the proprio motu mechanism requires “judicial authorization” for an investigation to begin. In light of this detail, this US aid condition would only apply to an investigation in Palestine opened by the ICC Prosecutor using her proprio motu authority.

Yet, for this reason, others have criticized this statutory provision because it overlooks the fact that the ICC Prosecutor is not limited to only her proprio motu authority in Palestine. When the “judicially authorized” language first passed in mid-2013, the UN General Assembly had already recognized Palestine as a non-member observer state. With this status, Palestine had the option of joining the Rome Statute and then referring the situation on its territory to the Court for investigation pursuant to Article 14, thus bypassing the “judicially authorized” requirement.

As such, a cut off of US aid would then only be triggered in one circumstance: Palestine decides not to make an Article 14 referral for an investigation after April 1 (or another State Party such as Comoros does not make a referral either), and the Prosecutor seeks and receives judicial authorization to open an investigation proprio motu. However, given Palestine’s recent statements, this particular course of events is highly unlikely. All signs indicate that Palestine will make an Article 14 State Party referral after April 1, making the proprio motu judicial authorization requirement unnecessary for an investigation to go forward. If this is the case, was the Heritage Foundation correct in calling Congress “sloppy” for creating an aid condition with such a loophole?

In short: No because of Article 18 of the Rome Statute. Article 18 obligates the ICC Prosecutor to inform relevant States (presumably here, Palestine and, as a non-State Party, Israel) that either a proprio motuor State Party referred investigation has begun. A relevant State then has a one-month period to request the ICC investigation to stop because a State-led investigation is occurring or has occurred. If this request is made, the Prosecutor “shall defer to the State’s investigation … unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the [Prosecutor’s] investigation.” If the Prosecutor does in fact receive such authorization, the investigation would then become “judicially authorized.” In other words, even investigations commenced pursuant to a self-referral (or another State Party’s referral) might require judicial authorization if a relevant State objects to the investigation.

Thinking ahead, what would Israel do if the ICC Prosecutor notifies them pursuant to Article 18 that she has commenced an ICC investigation in Palestine of alleged crimes committed by Israelis? It might depend on the focus of the ICC’s investigation. If the ICC indicates it is focusing on alleged crimes committed during the most recent Gaza conflict, Israel would likely request the ICC to defer to its national proceedings because Israeli authorities have already announced steps to investigate these allegations. Conversely, if the ICC indicates that any part of its investigation relates to settlements, it would be harder for Israel to contend that it is “investigating” such settlements that it has long asserted are legal. Israel still might request a deferral here because it will, is, or has investigated the settlement allegations. Nevertheless, for the Prosecutor to override Israel’s deferral request in either circumstance and pursue her own investigation, she would need “judicial authorization.”

The only reason for Israel not to seek an ICC deferral after an Article 18 notification is if it concludes that any engagement with the ICC legitimizes an institution that, in recent days, it has sought to discredit and defund. Israel may conclude, however, that a disengagement strategy will not have much delegitimizing effect given that 122 States — including many of its allies — are currently members of the ICC. It may also want preliminary admissibility and jurisdictional proceedings where arguments can be made that Palestine is not a “State” for purposes of Rome Statute provisions and that Israel’s investigations are good faith efforts that warrant the ICC’s deference.

Altogether, the circumstances militate toward the Prosecutor likely seeking judicial authorization for an investigation at some point, which she will receive provided her case is meritorious. A mandated cut off in US aid to Palestine would then follow. It is unlikely, however, that the Prosecutor will seek this authorization anytime soon. As Alex Whiting has pointed out, even if Palestine immediately makes an Article 14 State Party referral after April 1, the ICC Office of the Prosecutor will likely take months, if not years, to evaluate the situation before attempting to open an investigation. Congress and the Administration have a window of time to consider, as a result, whether current US law continues to serve American interests.

This article represents the views of the author and, except as specified otherwise, does not necessarily represent policy of the ABA or the ABA Center for Human Rights.